WOTUS rule could increase cost, frustration on CWA 404 enforcement

The Waters of the U.S. rule issued by EPA to help clarify the long-running navigable waters debate in 2015 has sparked a tremendous hue and cry among farm organizations who have sought to block its implementation.

But what about the folks who have to deal with the Clean Water Act and its myriad provisions on a day-to-day basis – the attorneys who specialize in environmental law and for whom the legal issues are certainly no abstract matter?

After she spoke for nearly an hour on the Clean Water Act, Section 404 permits, agricultural exemptions in the CWA, the recapture provision and a number of other topics at the Mid-South Agricultural and Environmental Law Conference, Farm Press sat down with Sharon Marie Mattox of the Mattox Law Firm in Houston.

The first question: Where are we with the Waters of the U.S. rule as published by EPA?

“The rule became effective in August of 2015; it’s only been stayed by the 6th Circuit Court of Appeals,” she said. “I think that if the circuit courts keep jurisdiction, it is more likely the government will prevail, and the rule will be held valid.

“I think it’s impossible for an appellate court to look at the diversity of fact situations across the country, which I think are really important. I talked about these seven categories that grab these huge areas of jurisdiction like the Gulf Coast and says they’re all similar. I’m afraid we’re going to end up with the rule even though I think it does extend jurisdiction.”

Mattox said she believes the concept that manmade ditches are jurisdictional in many cases under the rule will be a critical part of the rule’s impact.

Nationwide permits?

“I think that designating all of the wetlands within the Gulf Coast ranging in elevation from zero to 350 to 400 feet above sea level regardless of their distance from any tributary or all navigable waters is tremendously important,” she said. “I think it has the potential for unintended effects. If all of those are significantly related to the Clean Water Act, how do we ever do nationwide permits?”

As an attorney whose practice has included a number of clients on Clean Water Act issues over the years, Mattox says she is “getting increasingly depressed that we’re going to get struck with this rule.”

She said one of the Texas senators recently said, “Oh, don’t worry about this. Congress will take care of it.”

“Well, I despair of Congress taking care of anything in the next five or 10 years,” Mattox noted.

She was asked what impact the WOTUS rule might have had in the cases she has worked on for clients confronted with legal action by EPA or the U.S. Army Corps of Engineers had its language been in effect then?

“The first threshold question is ‘are you in a navigable water?’” she said. “And I think this rule makes that net cast more broadly. So it would make it easier for the government to prove that first question of are you in a navigable water situation.

“Then the question of have you done the jurisdictional activity becomes fairly important, as well. The real kicker then is interpreting recapture in a reasonable way becomes more important, and I don’t have a great deal of faith that all EPA employees will do that.”

More discretion for EPA?

Does she think EPA will have even more discretion in bringing enforcement actions against those whose livelihoods come from working with the land and the environment?

“I think there is a huge amount of prosecutorial discretion in terms of when you pursue something, when do you not,” she said. “One of the recent ag cases that I didn’t talk about really dealt with that exact sort of thing. A neighbor had objected to the way the Corps had dealt with the program, and the court really held how the Corps uses its discretion over how it interprets and enforces its permit program is absolute.”

She was asked if she thought it was possible to have more extensive damages awarded under the new rule?

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“I do. The penalties are high, and the courts have pulled them down somewhat, but the restoration isn’t cheap, and so many times the restoration is not only going out and scooping the dirt up and taking it away, it’s then replanting, and, if it was a forested area, replanting with the appropriate tree species.

“That, in itself, is a kind of agriculture because then you’ve got to monitor the survival of those trees, you have to replant if they don’t survive and you’re filing reports. Then they get to say when you’re done. So I think the penalties are only going up. Everything escalates.”

During her presentation, Mattox noted it’s difficult to win against the federal government, citing figures the EPA settles more than 90 percent of the enforcement actions it brings without going to trial.

Difficult for ‘little guy’

“It is, especially for the little guy,” she said. “The DOJ (Department of Justice) has a lot of really, clever lawyers, but they’re kind of a fixed cost. They’ve got to do something. EPA is facing tight budgets, and that makes it even harder because when EPA is facing reduced resources each case they bring becomes more important to them – that they get deterrence out of it.

“So they are less inclined to let it go, and for the average small businessman, and most farmers are small businessmen, it just very quickly becomes a game that is too expensive to keep playing.”